Citation Nr: 0908239
Decision Date: 03/05/09 Archive Date: 03/12/09
DOCKET NO. 05-41 565 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUES
1. Entitlement to service connection for anemia.
2. Entitlement to service connection for psychiatric
disorders diagnosed as schizophrenia, generalized anxiety
disorder, and somatoform disorder.
3. Entitlement to service connection for a right shoulder
disorder.
REPRESENTATION
Appellant represented by: Georgia Department of Veterans
Services
ATTORNEY FOR THE BOARD
John Francis, Associate Counsel
INTRODUCTION
The Veteran served on active duty from March 1977 to December
1977.
This appeal comes before the Board of Veterans' Appeals
(Board) from a December 2004 rating decision of a Department
of Veterans Affairs (VA) Regional Office (RO) that denied
service connection for anemia and from a March 1998 rating
decision that denied service connection for schizophrenia, a
somatoform disorder, and a right shoulder disorder.
In August 1999 and December 2005, the Veteran requested
hearings before the Board. However, he withdrew the request
in writing in July 2007.
In February 2008, the Board remanded the claims for further
development, and they are now before the Board for
adjudication.
The issue of service connection for anemia is addressed in
the REMAND portion of the decision below and is REMANDED to
the RO via the Appeals Management Center (AMC) in Washington,
D.C.
FINDINGS OF FACT
1. The Veteran's psychiatric disorders first manifested many
years after service and are not related any aspect of
service.
2. The Veteran's calcific tendinitis, recurrent
dislocations, and residuals of right shoulder surgery first
manifested many years after service and are not related to
any injuries or other aspects of service.
CONCLUSIONS OF LAW
1. The criteria for service connection for psychiatric
disorders including schizophrenia, generalized anxiety
disorder, and somatoform disorder have not been met.
38 U.S.C.A. §§ 1101, 1110, 1112, 1131 (West 2002); 38 C.F.R.
§§ 3.303, 3.307, 3.309 (2008).
2. The criteria for service connection for a right shoulder
disorder have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112,
1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
VA has a duty to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007);
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2008).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a);
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App.
183 (2002). Proper notice from VA must inform the claimant
of any information and evidence not of record (1) that is
necessary to substantiate the claim; (2) that VA will seek to
provide and; (3) that the claimant is expected to provide.
See 38 C.F.R. § 3.159(b)(1) and 73 Fed. Reg. 23,353 (Apr. 30,
2008). This notice must be provided prior to an initial
unfavorable decision on a claim by the agency of original
jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328
(Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112
(2004).
Further, VA must review the information and the evidence
presented with the claim and provide the claimant with notice
of what information and evidence not previously provided, if
any, will assist in substantiating, or is necessary to
substantiate, each of the five elements of the claim,
including notice of what is required to establish service
connection and that a disability rating and an effective date
for the award of benefits will be assigned if service
connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473
(2006).
The claims for service connection for psychiatric disorder
and for a right shoulder disorder were received in November
1997. In March 1998, the RO denied service connection as not
well grounded. The Veteran expressed timely disagreement,
and following the issuance of a statement of the case, the
Veteran perfected a timely appeal in August 1999. The appeal
was not forwarded to the Board for adjudication.
The Veterans Claims Assistance Act of 2000 (VCAA) was enacted
on November 9, 2000. This law eliminated the concept of a
well-grounded claim, redefined the obligations of VA with
respect to the duty to assist, and imposed on VA certain
notification requirements. 38 U.S.C.A. §§ 5103, 5103A (West
2002); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2008). In May 2001,
June 2002, and June 2003, the Veteran's representative
petitioned for reconsideration of the decision to include
compliance with the notice and assistance provisions of the
VCAA. In June 2003, the RO denied service connection for
schizophrenia and for tenosynovitis of the right shoulder.
Although section 7 (b) of the VCAA contained special
provisions for readjudication of prior claims in which a
final decision had been provided, section 7 (a) provided that
for decisions that were not final, the original decision
remained in existence and a notice of disagreement relating
to it remained in effect. If a decision after readjudication
remained adverse to the Veteran, a supplemental statement of
the case must be issued to update VA's position in light of
further factual development and other actions under the Act.
38 C.F.R. § 19.31 (2008), see VAOPGCPREC 03-2001, Jan. 21,
2001; Fast Letter 01-02 ((Dep't of Veterans Affairs, Jan. 9,
2001). Here, the RO decision of March 1998 was not final
and, in fact, a perfected appeal to the Board was pending.
Therefore, the Board concludes that the duty to notify with
respect to these claims was not satisfied prior to the
initial unfavorable, post VCAA decision on the claims.
VA's duty to notify may not be "satisfied by various post-
decisional communications from which a claimant might have
been able to infer what evidence the VA found lacking in the
claimant's presentation." Rather, such notice errors may
instead be cured by issuance of a fully compliant notice,
followed by readjudication of the claim. See Mayfield v.
Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was
not provided prior to the initial adjudication, this timing
problem can be cured by the Board remanding for the issuance
of a VCAA notice followed by readjudication of the claim).
In February 2008, the Appeals Management Center (AMC)
provided a compliant notice and readjudicated the claims in a
November 2008 supplemental statement of the case.
In addition, VA has obtained all relevant, identified, and
available evidence and has notified the appellant of any
evidence that could not be obtained. VA has also obtained VA
outpatient treatment records and medical examinations.
The Veteran reported to a VA medical provider that he was
receiving SSA benefits for Lyme disease. VA has not
requested medical or adjudicative records of this
determination or the records from the two private physicians
who were identified in VA treatment reports. VA is obligated
to provide assistance by requesting relevant federal and
private records that the Veteran identifies and authorizes
the Secretary to obtain. 38 U.S.C.A. § 5103A (c). Here, the
Veteran has not indicated that he was treated by his
physicians for any of the disorders on appeal and did not
authorize VA to obtain any records from the providers.
Furthermore, the Veteran indicated that his SSA benefits were
related to other diseases not related to those on appeal.
The Board concludes that there is no reasonable possibility
that SSA records, if any, would assist in substantiating this
claim. VA has obtained records of VA primary care and
psychiatric outpatient treatment. Thus, the Board finds that
VA has satisfied both the notice and duty to assist
provisions of the law.
The Veteran served in U.S. Army trainee assignments including
telecommunications and airborne training. He was discharged
prior to completing all training. He contends that his
disabilities first manifested in service or that they were
the result of injuries or a traumatic event in service.
Service connection may be granted for disability resulting
from a disease or injury incurred in or aggravated by
military service. For the showing of chronic disease in
service, there must be a combination of manifestations
sufficient to identify the disease entity and sufficient
observation to establish chronicity at the time. If
chronicity in service is not established, evidence of
continuity of symptoms after discharge is required to support
the claim. Service connection may also be granted for a
disease diagnosed after discharge when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 U.S.C.A. § 1110, 1131;
38 C.F.R. § 3.303.
In order to establish service connection for a claimed
disorder, there must be
(1) medical evidence of current disability; (2) medical, or
in certain circumstances, lay evidence of in-service
incurrence or aggravation of a disease or injury; and
(3) medical evidence of a nexus between the claimed in-
service disease or injury and the current disability. See
Hickson v. West, 12 Vet. App. 247, 253 (1999); see also
Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer
v. Derwinski,
3 Vet. App. 223 (1992). Such determination is based on an
analysis of all the evidence of record and evaluation of its
credibility and probative value.
Baldwin v. West, 13 Vet. App. 1, 8 (1999).
Some chronic diseases maybe presumed to have been incurred in
service, although not otherwise established as such, if
manifested to a degree of ten percent or more within one year
of the date of separation from service. 38 U.S.C.A. §
1112(a) (1); 38 C.F.R. § 3.307(a) (3); see 38 U.S.C.A. §
1101(3) and 38 C.F.R. § 3.309(a) (listing applicable chronic
diseases, including psychoses, organic diseases of the
nervous system, and arthritis).
Psychiatric Disorders
Service medical records are silent for any symptoms,
diagnoses, or treatment for any psychiatric disorders or
traumatic injuries in service. Service personnel records
showed that the Veteran completed basic training and was a
student in airborne training when he was recommended for
permanent disqualification because of inadaptability, lack of
motivation, and self-imposed withdrawal. There were no
indications of any special assignments, clearances, or
qualifications. Concurrent with a December 1977 discharge
examination, the Veteran underwent a mental status
evaluation. The examiner noted a depressed mood but also
noted that the Veteran's behavior was normal with full
orientation, clear thinking processes, normal thought
content, and good memory. He concluded that there were no
significant mental illnesses.
In December 1997, the Veteran underwent a mental status
examination by a VA psychologist who noted the Veteran's
reports of childhood family problems, physical and sexual
abuse, and teen age difficulties involving drug and alcohol
abuse and assault. The Veteran reported that he joined the
Army to avoid incarceration. The Veteran reported that he
enjoyed his initial training until he experienced a traumatic
event while on guard duty when he suddenly became violently
ill while alone in the woods. He described how he lost
consciousness, was returned to the barracks, had an out-of-
body experience, and later recovered in the hospital. He
refused a medical discharge in order to continue his
training. He reported that he later experienced a recurrence
of gastrointestinal distress and was granted a humanitarian
discharge to assist in the care of his father.
The psychologist noted that the Veteran was oriented with
coherent and articulate speech and no memory deficits but
with some lack of concentration and impulse control. He
presented symptoms of depersonalization, distortion of body
image, and auditory and visual hallucinations. The
psychologist noted that the Veteran's somatic symptoms and
concern over his gastrointestinal disorder disrupted his
normal behavior and interfered with obtaining consistent
employment. The psychologist diagnosed undifferentiated
schizophrenia, generalized anxiety disorder, and
undifferentiated somatoform disorder. Although the
psychologist noted that the Veteran responded to the guard
duty incident "traumatically," he did not state that the
reported incident was a cause or first manifestation of the
diagnosed psychiatric disorders.
The same month, the Veteran underwent a neurological
examination. The VA physician noted the Veteran's reports of
memory loss in school and in common activities at home, a
history of substance abuse, and the episode in service
involving gastrointestinal distress and a near death
experience. A computed tomography scan of the brain showed
some atrophy, but other neurological tests were normal. The
physician diagnosed no neurological disorders.
In January 1998, the Veteran underwent an examination by a
neurophysiologist. The Veteran admitted to alcohol and
cocaine abuse the night before the examination. The
physician conducted a series of tests that showed no
language, spatial relationship, visual memory, or mental
efficiency deficits. The Veteran did display some verbal
memory deficits that the physician attributed to psychogenic
reasons, distraction, or poor motivation. However, the
physician noted that the results of a personality test along
with delusional ideations expressed during the interview
suggested diagnoses of paranoid schizophrenia, dysthemia,
somatic or conversion disorder, schizoaffective disorder, or
post-traumatic stress disorder. The physician was unable to
confirm any diagnosis and did not comment on a relationship,
if any, to the Veteran's reported traumatic event in service.
In an undated letter, the Veteran further described the
traumatic event in service as part of a highly classified
mission involving special physical and psychological testing,
abduction by aliens in a space vehicle, and a subsequent
crash that caused serious injuries.
In August 1999, the Veteran sought VA treatment for substance
abuse on the recommendation of his parole officer. In
December 1999, a VA psychiatrist noted the Veteran's report
that his legal problems were related to cocaine abuse which
he started in 1986 after using alcohol and marijuana since
his teens. The psychiatrist also noted that the Veteran
presented papers regarding unidentified flying objects and
extraterrestrials and discussed events in service involving a
near death experience. The psychiatrist referred the Veteran
to a substance abuse treatment program and noted that
additional examination was necessary to rule out delusional
disorder. VA records showed that the Veteran attended
monthly group substance abuse therapy over the next two
years.
In February 2002, a VA examiner noted the Veteran's reports
of the traumatic event in service and received a copy of a
published manuscript that the Veteran had written regarding
the event. The examiner noted that the Veteran had been
abstinent from substance abuse for three years and though
slightly dysthymic, was alert and attentive with no thought
disturbances. He was taking no medication. The examiner
noted that the Veteran was preoccupied with the unidentified
flying object event and appeared to be concerned that others
doubted its occurrence, a situation that caused him
considerable stress. The examiner noted the results of in-
depth cognitive and personality testing. The examiner
concluded that there was no neurocognitive impairment but
that there was some evidence of a schizotypal personality
disorder manifested by inflated self-image and a pattern of
passive-dependent relationships with others. The examiner
recommended a treatment program involving a cognitive-
behavioral approach to learn new ways to handle emotions to
avoid depression and anxiety symptoms.
The Veteran continued in a therapy program until September
2002 when he was able to obtain full time employment. In
October 2002, a VA examiner noted that the Veteran reported
that his mood was stable, that he was taking his medication
regularly, and that he was busy at his job. In June 2003, a
VA examiner noted that the Veteran again reported stable
mood, compliance with medication, and continued abstinence
from alcohol and drugs. There was no evidence of delusional
ideations, cognition, judgment, or insight deficits. The
examiner concluded that the Veteran was free of any psychosis
and was functioning well in his marriage and at work. VA
outpatient records through October 2004 showed continued
follow-up and prescribed medication for psychiatric symptoms
but no changes in severity or diagnoses.
The Board concludes that service connection for a psychiatric
disorder, variously diagnosed as schizophrenia, generalized
anxiety disorder, and a somatoform disorder, is not
warranted. Service medical records showed no
hospitalizations or any treatment for traumatic injuries or
psychiatric symptoms. Service personnel records showed that
the Veteran was a trainee for the entire period of service.
It is not credible that a soldier with incomplete training
would be assigned to independent, highly classified duties.
Therefore, the Board concludes that that there is no
probative evidence of the occurrence of the traumatic events
described by the Veteran.
Symptoms of mental illness first manifested in 1997 many
years after service. Furthermore, although medical providers
have noted the Veteran's reports of the event in service,
none have suggested that the event caused the Veteran's
psychiatric disorders. Rather, at least one medical provider
stated that the Veteran's personality, anxiety, and
depressive disorders were in part related to the Veteran's
mental and emotional responses to his perceptions and
preoccupation with his memories of events that he contended
occurred twenty years earlier. Moreover, medical providers
cited many other nonservice-related factors in the etiology
of the disorders.
The weight of the credible evidence demonstrates that the
Veteran's current psychiatric disorders, now in remission,
first manifested many years after service and are not related
to any aspect of his active service. As the preponderance of
the evidence is against this claim, the "benefit of the
doubt" rule is not for application, and the Board must deny
the claim. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski,
1 Vet. App. 49 (1990).
Right Shoulder
Service treatment records are silent for any symptoms,
diagnoses, or treatment for a right shoulder injury or
disorder in service including on a December 1977 discharge
physical examination.
In January 1998, a VA physician did not note a review of the
claims file; however, only the service treatment records were
in the file at the time of the examination. The examiner
noted the Veteran's reports of dislocating his right shoulder
in 1986 and undergoing shoulder surgery in 1991. The Veteran
did not disclose the circumstances of the injury or the
facility where he received treatment and surgery. The
examiner noted the Veteran's reports of morning stiffness in
all joints that later improves with exercise. No other
symptoms were noted. The examiner noted a scar on the
anterior aspect of the right shoulder that he attributed to
shoulder surgery. He noted some limitation of motion of the
right shoulder. A concurrent X-ray showed calcific
tendinitis. The examiner diagnosed recurrent right shoulder
dislocation, residual limitation in abduction and flexion due
to post traumatic arthritis, and calcific tendinitis.
As previously noted, the Veteran stated in an undated letter
that he experienced a traumatic event in service that
required hospitalization for exposure to explosions,
implosions, and crashes of an alien space vehicle. The Board
concluded that these reports are not credible.
Outpatient VA primary care records showed that the Veteran
continued to experience right shoulder joint pain and was
prescribed over-the-counter pain medication.
The Board concludes that service connection for a right
shoulder disorder is not warranted. Service treatment
records are silent for any injury to the right shoulder. The
first manifestations of a right shoulder injury by the
Veteran's statements to a VA physician were in 1986 when he
dislocated his shoulder and underwent surgery in 1991, many
years after service.
VA must provide a medical examination and obtain a medical
opinion when there is (1) competent evidence of a current
disability or persistent or recurrent symptoms of a
disability, (2) evidence establishing that an event, injury,
or disease occurred in service, or establishing certain
diseases manifesting during an applicable presumptive period
for which the claimant qualifies, and (3) an indication that
the disability or persistent or recurrent symptoms of a
disability may be associated with the Veteran's service or
with another service-connected disability, but (4) there is
insufficient competent medical evidence on file for the
Secretary to make a decision on the claim. McLendon v.
Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. §
5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The third prong,
which requires that the evidence of record "indicate" that
the claimed disability or symptoms "may be" associated with
the established event, is a low threshold. McLendon, 20 Vet.
App. at 83.
In this case, the Board notes that the Veteran has a current
right shoulder disorder but there is no credible lay or
medical evidence of an injury or disorder of the right
shoulder in service or for many years after service.
Therefore, an additional examination and opinion is not
necessary to decide the claim.
The weight of the credible evidence demonstrates that the
Veteran's current calcific tendinitis of the right shoulder
first manifested many years after service and is not related
to any aspect of his active service. As the preponderance
of the evidence is against this claim, the "benefit of the
doubt" rule is not for application, and the Board must deny
the claim. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski,
1 Vet. App. 49 (1990).
ORDER
Service connection for psychiatric disorders diagnosed as
schizophrenia, generalized anxiety disorder, and somatoform
disorder is denied.
Service connection for a right shoulder disorder is denied.
REMAND
In the opinion of the Board, additional development is
necessary.
In February 2008, the Board remanded the claim for anemia to
schedule the Veteran for an examination of his hemic system.
An examination was scheduled for October 20, 2008, but the
Veteran failed to report for the examination. In December
2008, the Board received a Report of Contact, VA Form 119,
dated October 20, 2008. A VA representative noted that the
Veteran reported by telephone that he had missed the
examination appointment by 20 minutes and requested the
examination be rescheduled.
VA may reschedule a missed examination if the Veteran shows
good cause. VA Manual M-21MR, III.iv.3.B.14.e (2008). The
Board concludes that the Veteran showed good cause because he
informed VA the same day of the examination and missed his
appointment time by only 20 minutes.
Accordingly, the case is REMANDED for the following action:
1. Reschedule the Veteran for a VA
examination of his hemic system. Request
that the examiner review the claims file
and note review of the claims file in the
examination report. Request that the
examiner provide a determination whether
the Veteran has a current diagnosis of
anemia and provide an opinion whether any
disease found is at least as likely as
not (50 percent or greater possibility)
related to a diagnosis and treatment of
anemia in service or any other aspect of
service. Request that the physician also
comment on the relevance of the 1998
notation of thallasemia and on the out-of
range blood test results from 1999 to
2003.
2. Then, if and only if the Veteran
reports for the examination, and after
taking any other development action
deemed warranted, readjudicate the claim
for service connection for anemia. If
any decision remains adverse to the
Veteran, provide the Veteran and his
representative with a supplemental
statement of the case and an opportunity
to respond. Thereafter, return the case
to the Board as appropriate.
The appellant has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
______________________________________________
S. S. TOTH
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs